US judge forced to quash man's rape conviction because victim was not married

A US judge has criticised a loophole in the law which meant he was forced to
quash a man’s rape conviction because his victim was not married.

Julio Morales' conviction was this week overturned by the Los Angeles Court of Appeal which ruled that, because of an ancient law, he could only be convicted of the crime if he had pretended to be the victim's husbandPhoto: ALAMY

Julio Morales had been convicted of rape and sentenced to three years in prison after he crept into the bedroom of his sleeping victim and had sex with her while pretending to be her boyfriend.

But his conviction was overturned this week by the Los Angeles Court of Appeal. It ruled that, because of a 19th-century law, he could only be convicted of the crime if he had pretended to be the victim’s husband.

The California state law, written in 1872, states that “any person who fraudulently obtains the consent of another to sexual relations escapes criminal liability… unless he (or she) ... masquerades as the victim’s spouse”.

The use of the word spouse meant that Morales’s conviction was overturned because his victim was not married.

The appeal judge, Judge Thomas L. Willhite Jr, said in his decision that the law should be re-written.

Writing that the court “must reverse” the conviction, Judge Willhite wrote: “In doing so, we urge the Legislature to re-examine … and correct the incongruity that exists when a man may commit rape by having intercourse with a woman when impersonating a husband, but not when impersonating a boyfriend”.

Morales had been at a party with his victim and had later returned to her apartment, with her boyfriend, brother and other friends, when she went to bed.

The court heard that the victim, who was 18 at the time of the incident in 2009, had gone to bed with her boyfriend but that they had not had sex. The boyfriend waited until she fell asleep and left to go home.

Morales then went into the victim’s darkened room and began having sex with her. The victim woke but it was not until a light shone on Morales’s face that she realised he was not her boyfriend.

In the court’s decision, the judge summarises the inconsistency in the California law by writing: “A man enters the dark bedroom of an unmarried woman after seeing her boyfriend leave late at night, and has sexual intercourse with the woman while pretending to be the boyfriend. Has the man committed rape?

“Because of historical anomalies in the law and the statutory definition of rape, the answer is no, even though, if the woman had been married and the man had impersonated her husband, the answer would be yes.”